Mr G Szymanski and Mrs E Szymanska v Fuji Seal Europe Ltd: 2300794/2018 and 2300998/2018
EMPLOYMENT TRIBUNALS
Case No 2300794/2018, 2300998/2018
Between
Mr G Szymanski and Mrs E SzymanskaClaimantFuji Seal Europe LtdRespondent
Before
Employment Judge PritchardMr R Kater (instructed by advocate) for respondentDate 20 November 2019
JUDGMENT
[1]The First Claimant’s claim of unfair dismissal is not well-founded and his claim is accordingly dismissed.[2]The Second Claimant’s claim of unfair dismissal is not well-founded and her claim is accordingly dismissed.
REASONS
[1]The Claimants, who are husband and wife, each bring claims for unfair dismissal. Mr Szymanski’s claim presented on 4 March 2018 was allocated two case numbers apparently on the basis that he also complained of his wife’s dismissal. In fact, Mrs Szymanska presented her own claim on 20 March 2018. The claim of Mr Szymanski, to whom I shall refer as the First Claimant, is considered under case number 2300794/2018 and the claim of Mrs Szymanska, to whom I shall refer as the Second Claimant, is considered under case number 2300998/18. Case number 2300795/2018 has no application in this case. The Respondent resists the claims.[2]Just a few days before the hearing, the Claimant’s representative made a request for a Polish Interpreter. At the commencement of the hearing, Mr Aga told the Tribunal that his application was mistaken and an interpreter would not be required. Mr Aga expressed his desire the for the hearing to proceed. Based upon his assurance that the fairness of the trial would not be impaired without the assistance of an interpreter, I decided that the hearing should proceed.[3]The Tribunal heard evidence from the Respondent’s witnesses: Tammy Montgomery (former HR Manager); Mark Hart (former Manufacturing Manager); Mark Chesterton (Conversion Manager at relevant times); Tania Watts (the Second Claimant’s line manager at relevant times); and Darren Campbell (Logistics Manager). The Respondent also placed in evidence a statement from Danielle Parrott (HR Assistant) but who was not called to give evidence and to which the Tribunal gave limited weight. The Claimants each gave evidence on their own behalf and that of each other. The Tribunal was provided with a bundle of documents and a supplementary clip of documents provided by the Claimants. At the conclusion of the hearing, the parties made oral submissions, Mr Kater also providing written submissions.
The issues
[4]The issues were discussed at the commencement of the hearing and agreed as follows: 4.1. Can the Respondent can show the reason, or if more than one the principal reason, for the Claimants’ dismissal and that it was for a reason relating to their conduct or for some other substantial reason, namely the loss of trust and confidence the Respondent held in the Claimants. This will require the Respondent to show that they genuinely believed the Claimants were guilty of misconduct and/or that trust and confidence had been lost; 4.2. If so, whether the Respondent had reasonable grounds upon which to sustain that belief; 4.3. Whether at the stage at which that belief was formed on those grounds, the Respondent had carried out as much investigation into the matter as was reasonable in the circumstances; 4.4. Whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted; 4.5. Whether the dismissals were procedurally fair. 4.6. If the Tribunals finds that either dismissal was unfair by reason of any procedural defect, whether the Respondent might or would have dismissed the Claimant(s) in any event and whether any compensation should be reduced accordingly (Polkey). 4.7. Whether either Claimant caused or contributed to their dismissal such that any compensation for unfair dismissal should be reduced
Findings of fact
[5]The First Claimant commenced employment with the Respondent in July 2013 as a Film Line Operator. The Second Claimant commenced employment with the Respondent in January 2016 as a Planner, a position from which she was subsequently promoted.[6]The statements of terms of conditions of employment relating to both Claimants include the following: Nothing in these terms and conditions of employment shall prevent the Employer from terminating your employment without notice or salary/wages in lieu of notice in appropriate circumstances[7]The Respondent’s disciplinary procedure, applicable to the employment of both the Claimants, provides the following example of conduct falling within the definition of gross misconduct: Theft, fraud, falsification of Company records or any dishonesty involving the Company, its employees, customers or authorised visitors or attempts to commit such offences[8]In July 2017 the First Claimant was dismissed by Tammy Montgomery for unauthorised absence. However, shortly afterwards, he was reinstated upon appeal. Mark Hart was the appeal officer and it was his decision that the Claimant should be reinstated.[9]On 1 September 2017 the First Claimant went on sick leave, his medical certificate stating stress at work. The Respondent held a keep in touch meeting with the Claimant on 12 October 2017.[10]I accept the Respondent’s evidence that sometime after this meeting one of the Respondent’s managers was informed by an employee about to leave the Respondent’s employment that, in his new employment with a company called IPL, he was to become the First Claimant’s supervisor. This gave rise to a suspicion on the Respondent’s part that the First Claimant might be working for IPL while on sick leave from the Respondent’s employment during which time he had an entitlement to payment of statutory sick pay payable by the Respondent.[11]Tammy Montgomery gave clear and credible evidence that, in accordance with the wishes of management, she instructed a private investigator by telephone. I have been shown a copy of the invoice raised by the private investigation company and a copy of the Respondent’s purchase requisition document. Although these documents show different payable sums (in that the invoice adds VAT to the principal sum), it does not detract from my view, reached on the balance of probabilities, that both the instruction to the private investigator and the ensuing report are genuine. I do not find it credible that the Tammy Montgomery would fabricated the investigation report or that others, who would have to have formed part of a conspiracy, would have fabricated the supporting documents. I accept the Respondent’s evidence that it engaged the services of a private investigator on 14 November 2017, requesting that the investigation be kept as unobstrusive as possible, not least because the Second Claimant was also employed by the Respondent.[12]Following observations and enquiries undertaken on various occasions between 14 November 2017 and 6 December 2017 (the invoice suggests observations were made over four days in that peroid) the private investigator’s report dated 11 December 2017 showed that: 12.1. Having identified the First Claimant by a photograph obtained from the internet (and which Tammy Montgomery had confirmed showed the First Claimant), the investigator observed the First Claimant arriving and leaving the IPL site in Sittingbourne on several occasions; 12.2. On occasions he was dropped off and collected by a female in a red car; 12.3. On other occasions he was dropped off and collected by a male in a blue car; 12.4. Enquiries revealed that the First Claimant was engaged by an agency and was working at IPL and had been doing so since September 2017 working a twelve-hour shift system four days on, four days off; 12.5. Persons leaving the site identified the First Claimant as being an employee at IPL; 12.6. Attendances at the First Claimant’s home address found no one at home or was informed the First Claimant was at work.[13]The Second Claimant drove a red car at relevant times.[14]On 12 December 2017, the First Claimant was invited to attend a disciplinary hearing. The allegation was described as follows: Whilst being signed off as unfit for work due to work related stress, you are undertaking paid employment for another employer. You are claiming statutory sick pay which you are not entitled to as are clearly fit enough to attend work at International Produce and Logistics Limited[15]A copy of the investigation report was enclosed with the letter.[16]On 13 December 2017, the Second Claimant was asked to attend a meeting with her line manager, Tania Watts, and Tammy Montgomery. Tammy Montgomery prepared a brief typed note which records: I showed ES [the Second Claimant] the report we had received from the investigators and asked her if she was aware that if an employee claimed statutory sick pay and worked elsewhere this was fraud and illegal ES began to weep and said she did not know this and added that Greg [the First Claimant] said it was ok I pointed and read out the section in the report that mentioned a female in a red car taking and collecting Greg from the other place of work. I asked ES if this was her? ES continued to cry and we told her to take her time. I re-iterated that we were only interested in her and her involvement. I explained that she could face disciplinary for what we believe is assisting another employee to defraud ES said she was of course supporting her husband and both TW [Tania Watts] and I said we understood this and would do all possible to assist her. ES asked what happened next and whether she should leave. I replied no as this wasn’t an investigation meeting, once she was able to compose herself (I suggested she go and have a coffee) she should return to work. I said she would be told later what would happen next. Throughout the meeting ES was very upset and cried. I believe she was quite shocked.[17]In evidence, the Second Claimant denied that she had used the words recorded in those notes. In terms, she denies that she made any admission as to her guilt of that of the First Claimant. Tammy Montgomery and Tania Watts told the Tribunal that the notes are an accurate summary of the discussion. When asked by the Tribunal to carefully read the notes, Tania Watts confirmed that the Second Claimant’s answers recorded in the note are correct as she remembers them. Tammy Montgomery was not challenged in cross examination as the accuracy or veracity of the notes. I find it more likely than not that the notes are an accurate reflection of what the Second Claimant said at the meeting of 13 December 2017.[18]The following day Tania Watts held a formal investigation meeting with the Second Claimant. She now denied that the First Claimant was working elsewhere while off sick and denied that she had dropped her husband off at, or collected him from, another place of work. The Second Claimant was suspended on full pay upon the allegation that she had actively assisted another employee to fraudulently claim sick pay.[19]After they had returned to their desks, the Second Claimant told Tania Watts that she had done nothing wrong and that she had not been ferrying her husband to or from another place of work in her car. Tania Watts typed up a note of the conversation the following day. In her note, she also stated: In previous conversations I had asked Eliza if Greg would be returning to work soon, in which she told me that he has to go to the hospital every day for meetings so he did not have time for work. With the meetings sometimes lasting up to 4 hrs[20]The Second Claimant now denies having said this although there was no evidence to suggest she denied having said it during the disciplinary process. I prefer Tania Watts’ clear and credible evidence that the note is an accurate record.[21]Mark Hart chaired the First Claimant’s disciplinary hearing on 15 December 2017. The First Claimant denied the allegation and suggested that may have been a case of mistaken identity. Mr Hart concluded that the First Claimant had committed the misconduct alleged and should be summarily dismissed for gross misconduct, his decision communicated to the First Claimant by letter sent to him on the same day. The First Claimant was advised of his right to appeal.[22]By letter dated 18 December 2017, the Second Claimant was invited to attend a disciplinary hearing on 21 December 2017. The allegation set out in the suspension letter similarly formed the allegation to be the subject of discussion. The Second Claimant was provided with a copy of the investigation report (although she had already seen the copy provided to the First Claimant) together with notes of the discussions referred to above.[23]The First Claimant appealed on 21 December 2017 on the basis that the Respondent had relied on “bad evidence” and that it was unfair not to have listened to his suggestion that this was a case of mistaken identity and instead to have believed the private investigator’s version of events. The Respondent required the First Claimant to provide new evidence without which an appeal would not proceed. The Claimant failed to provide any new evidence and the Respondent did not hold and appeal hearing or consider the First Claimant’s appeal.[24]In her witness statement, the Second Claimant states that she attended the disciplinary hearing on 21 December 2017 but she is confused. In fact, her request for a postponement of the disciplinary hearing had been granted so that she could be accompanied by her chosen companion and it was on 2 January 2018 that Mark Chesterton chaired the Second Claimant’s disciplinary hearing. Mr Chesterton concluded that the Second Claimant had committed the misconduct alleged and that there had been a breakdown in trust and confidence between the Respondent and the Second Claimant. The Second Claimant was dismissed with payment in lieu of notice.[25]The Second Claimant appealed against her dismissal. Darren Campbell heard the Second Claimant’s appeal on 26 January 2018. Mr Campbell upheld the decision to dismiss the Claimant.[26]The Second Claimant also raised grievances. The Respondent engaged the services of an external consultant to carry out an investigation following which the Respondent informed the Second Claimant that her grievances were unfounded. In evidence, the Second Claimant made it clear that the grievances she raised have nothing to do with her claim before the Tribunal.
Applicable law
[27]Under section 98(1) of the Employment Rights Act 1996, it is for the employer to show the reason for the dismissal (or if more than one the principal reason) and that it is either a reason falling within section 98(2) or for some other substantial reason of a kind such as to justify the dismissal of the employee holding the position he held. A reason relating to conduct is a potentially fair reason falling within section 98(2).[28]The reason for the dismissal is the set of facts or the beliefs held by the employee which caused the employer to dismiss the employee. In determining the reason for the dismissal, the Tribunal may only take account of those facts or beliefs that were known to the employer at the time of the dismissal; see W Devis and Sons Ltd v Atkins 1977 ICR 662.[29]Under section 98(4) of the Employment Rights Act 1996, where the employer has shown the reason for the dismissal and that it is a potentially fair reason, the determination of the question whether the dismissal was fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and must be determined in accordance with equity and substantial merits of the case.[30]When determining the fairness of conduct dismissals, according to the Employment Appeal Tribunal in British Home Stores v Burchell 1980 ICR 303, as explained in Sheffield Health & Social Care NHS Foundation Trust v Crabtree [2009] UKEAT 0331, the Tribunal must consider a threefold test: 30.1. The employer must show that he believed the employee was guilty of misconduct; 30.2. The Tribunal must be satisfied that he had in his mind reasonable grounds upon which to sustain that belief; and 30.3. The Tribunal must be satisfied that at the stage at which the employer formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.[31]It is not for the Tribunal to substitute its own decision as to the reasonableness of the investigation. In Sainsburys Supermarkets v Hitt [2003] IRLR 23 the Court of Appeal ruled that the relevant question is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted.[32]Nor is it for the Tribunal to substitute its own decision as to the reasonableness of the action taken by the employer. The Tribunal’s function is to determine whether, in the particular circumstances of the case, the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. See: Iceland Frozen Foods v Jones [1982] IRLR 430; Post Office v Foley [2000] IRLR 827.[33]Mr Aga referred the Tribunal to British Leyland UK Ltd v Swift [1981] IRLR 91 in which Lord Denning MR stated: The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view[34]Mr Aga also referred to HSBC v Madden [2000] EWCA Civ 330 which confirmed that the range of reasonable responses test remained good.[35]The requirement for procedural fairness is an integral part of the fairness test under section 98(4) of the Employment Rights Act 1996. When determining the question of reasonableness, the Tribunal will have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. The Code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most cases.[36]In Taylor v OCS Group Ltd [2006] IRLR 613, at paragraph 48, the Court of Appeal stressed that the Tribunal’s task under section 98(4) of the Employment Rights Act 1996 is not only to assess the fairness of the disciplinary process as a whole but also to consider the employer’s reason for the dismissal as the two impact on each other. It stated that where an employee is dismissed for serious misconduct, a Tribunal might well decide that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as sufficient to dismiss the employee. Conversely, the Court considered that where the misconduct is of a less serious nature, so the decision to dismiss is near the borderline, the Tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. Conclusion First Claimant
Conclusion
[37]The First Claimant has suggested reasons, other than his own misconduct, as to why he was dismissed: that he had a reputation for complaining about matters and standing up for his rights and that Mark Hart planned to get rid of him; and because of his Polish ethnicity. I do not accept the likelihood that Mark Hart was seeking to dismiss the Claimant, not least because it was Mark Hart who reinstated the Claimant on a previous occasion. That action on Mr Hart’s part detracts from the inference that he was trying to dismiss the Claimant. No evidence was adduced at all to suggest that the First Claimant might have been dismissed because of his Polish ethnicity.[38]Notwithstanding those conclusions, I remind myself that the burden of is on the Respondent to show the reason for the dismissal. I accept Mr Hart’s evidence that, notwithstanding the First Claimant’s denials, he had no reason to disbelieve the report of the private investigator, nor any reason to disbelieve that the First Claimant’s activities had been reported to a manger by a departing employee. I also note the sarcastic and dismissive way in which the First Claimant responded to the questions put to him at the disciplinary hearing. I conclude that Mr Hart held a genuine belief in the Claimant’s misconduct.[39]As to whether the investigation into the matter was adequate, it was of course open to the Respondent to require from the private investigator some further evidence about Claimant’s illicit activities, perhaps with photographs of the Claimant arriving at or departing from the IPL site. It would have been open for the Respondent to make enquiries of IPL direct to seek further clarification of the matter. It would have been open to the Respondent to require information, such as registration numbers, to positively identify the red and blue cars observed such that a stronger link to the First Claimant might have been established. But I must remind myself that I must not substitute my views for that of the employer. What I must consider is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted. Although the private investigator was instructed to carry out the observations by the Respondent, he was operating independently and there was no evidence to suggest that he had any cause to provide false information. The Respondent was entitled to rely on the investigation report. Although more could have been done, it cannot be said that the investigation fell outside the band of reasonableness.[40]The documents now produced by the First Claimant in which IPL confirm that they have never employed him were not before Mr Hart at the time and, in any event, cannot be relevant given that the private investigator’s enquiries showed that the First Claimant had been engaged by an agency, not directly by IPL. In light of the information contained in the investigation report which identified the Claimant as working for an agency at IPL, together with the way in which the First Claimant answered questions at the disciplinary hearing, I conclude that Mr Hart’s belief in the First Claimant’s misconduct was held on reasonable grounds.[41]The misconduct alleged falls fairly and squarely within the example of gross misconduct set out in the Respondent’s disciplinary policy to which I have referred above. The decision to dismiss the First Claimant for the misconduct alleged fell well within the band of reasonable responses.[42]As to the fairness of the procedure, I have two concerns. Firstly, it appears that the Respondent’s notes of the disciplinary hearing have not been retained and cannot therefore be disclosed in these proceedings. The foreword to the ACAS Code of Practice states: Employers would be well advised to keep a written record of any disciplinary or grievances they deal with[43]Tribunals must take into account the ACAS Code of Practice when considering relevant cases. Upon consideration I accept Mr Kater’s submission that the absence of a written record, while it might weaken the Respondent’s position evidentially, does not in itself lead to a finding of unfairness. I also note that the extract in the Foreword to the ACAS Code of Practice referred to is couched in terms of advice only. In any event, in this case, the Tribunal has been assisted by a transcript of the disciplinary hearing taken from a covert recording made by the First Claimant.[44]The second procedural aspect which concerns me is the Respondent requiring fresh evidence from the First Claimant without which his appeal would not be considered. Although this is not an aspect of the case advanced by the First Claimant as potential unfairness, in applying the test of fairness under section 98(4) of the Employment Rights Act 1996, I feel duty bound to consider it. The ACAS Code of Practice itself requires employers to allow employees to appeal any formal decision made. Paragraph 26 of the ACAS Code provides: Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing[45]There is nothing in the ACAS Code which requires an employee to provide fresh evidence as a condition of entitlement to have the appeal heard.[46]I expressed my concern about this aspect of the case during the Respondent’s submissions. Neither party referred me to the case of Taylor v OCS Group which I thought might be relevant to my consideration. I arranged for copies of the judgment to be provided to the representatives which they had opportunity to consider during the luncheon adjournment following which I invited their further submissions. Mr Kater for the Respondent sought to pray in aid the commentary at paragraph 48 of the judgment to which I have referred above and submitted, in terms, that given the seriousness of the misconduct the Tribunal should find that the Respondent acted reasonably in treating the reason as a sufficient reason to dismiss the First Claimant. Mr Aga for the Claimants relied on the submissions he had already made. Although the failure to consider the First Claimant’s appeal was a procedural failure, given the seriousness of the misconduct for which he was dismissed, and having considered the fairness of the disciplinary process as a whole (I am unable to detect any other procedural failures), I conclude that the First Claimant’s dismissal was not rendered unfair by reason of the Respondent’s failure.[47]For these reasons, the First Claimant’s claim for unfair dismissal is dismissed. Second Claimant[48]I first consider whether the Respondent held a genuine belief that the Second Claimant was actively assisting her husband in fraudulently claiming statutory sick pay. The Second Claimant states she must have been dismissed because of her Polish ethnicity but she has adduced no evidence whatsoever to support such an inference. Regardless, the burden rests on the Respondent. Having heard Mr Chesterton’s evidence, I am satisfied that he held a genuine belief in the Second Claimant’s misconduct. There was no evidence that he might have had an ulterior motive for dismissing her; on the contrary, she was a valued employee. Having heard his evidence, I conclude that Darren Campbell too held a genuine belief that the Second Claimant had assisted her husband.[49]I next consider whether that belief was held on reasonable grounds following as much investigation as was reasonable in the circumstances. In short, both Mr Chesterton and Mr Campbell had the following evidence before them: 49.1. What appeared to be an admission by the Second Claimant on 13 December 2017; 49.2. Evidence in a note made by Tania Watts that the Claimant had said her husband had to attend hospital every day for up to four hours; 49.3. The investigator’s report which identified a female driving a red car; and 49.4. Subsequent denials by the Second Claimant.[50]Again, there is more the Respondent could have done to investigate. They could have requested the private investigator to take photographs of the car for example; or photographs of the person driving it; or to record the registration number. But the investigator’s report was not the only evidence before Mr Chesterton and Mr Campbell. They also had what might be described as an initial admission by the Second Claimant. They also had Tania Watts’ note recording the Second Respondent’s comment about the First Claimant having to attend hospital every day for up to four hours. Although there was more the Respondent could have done to investigate the circumstances surrounding the Second Claimant’s alleged involvement in the First Claimant’s misconduct, I am unable to conclude that the investigation fell outside the band of reasonable responses.[51]In evidence, Mr Chesterton was clear that having worked with the Second Claimant and knowing her as he did, he believed her first statement, the admission, was more likely to be truthful because it reflected her true character. He concluded that the Second Claimant had changed her account after she had the opportunity to do so. At the disciplinary hearing, when he pressed the Second Claimant for an explanation as to why she changed her response, she would not give a full answer and instead kept referring back to the investigator’s report. Mr Campbell felt that the Second Claimant’s initial response when faced with the allegation relating to her and her husband was more likely to be truthful.[52]Although in evidence the Second Claimant denied having spoken to Tania Watts about her husband having to attend hospital every day, there was no evidence to suggest she had denied it during the course of the disciplinary process, despite having been provided with a copy of the note in which it is mentioned. Both Mr Chesterton and Mr Campbell found it hard to believe that the First Claimant might be required to attend hospital every day for up to four hours.[53]In short, they believed that the Second Claimant was not being honest in her denials. In light of the evidence before them, I am unable to conclude that either Mr Chesterton or Mr Campbell held an unreasonable belief that the Second Claimant assisted her husband in the way alleged. They held a genuine belief on reasonable grounds.[54]Dismissal for assisting another employer to commit fraud falls well inside the band of reasonable responses. This also amounts to dismissal because of a loss in trust and confidence.[55]As to the fairness of the procedure, I make the same observations about the paucity of notes retained by the Respondent relating to the Second Claimant’s claim but, for the same reasons, I do not find that it leads to a finding of unfairness.[56]For these reasons, the Second Claimant’s claim for unfair dismissal is also dismissed.[57]Having delivered oral judgment to the parties, added the following comments. Many claimants come to the Tribunal in an attempt to clear their name. However, in determining whether or not a dismissal is unfair, the Tribunal does not decide whether or not the alleged acts of misconduct took place. Rather, the task of the Tribunal is to make findings of fact and reach its conclusion in accordance with the law. The law requires the Tribunal to consider the issues set out at the beginning of this judgment. As Mummery LJ said in London Ambulance Service NHS Trust v Small [2009] IRLR 563 It is all too easy, even for an experienced Employment Tribunal, to slip into the substitution mindset. In conduct cases the claimant often comes to the Employment Tribunal with more evidence and with an understandable determination to clear his name and to prove to the Employment Tribunal that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the Employment Tribunal so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal[58]Although this judgment finds that the Claimants were not unfairly dismissed, it does not find that either of them were, or were not, guilty of the misconduct alleged.